Having long pledged to repeal the Human Rights Act altogether should they obtain a majority of seats in the House of Commons, some Conservative Party figures have recently suggested that they support the UK’s possible withdrawal from the European Convention on Human Rights (ECHR), or at least some sort of national parliamentary override of the European Court of Human Rights (ECtHR) in domestic law (on the details of these plans, see the discussion by Mark Elliott). Indeed, there is a widespread view that one purpose of the recent cabinet reshuffle was to pave the way to this end, in particular by removing the former Attorney-General, Dominic Grieve, who apparently described the plans as a ‘car crash’ (see further this analysis by Adam Wagner).
It is sometimes suggested that some or all such changes would necessarily result in the UK having to withdraw from the European Union. Is this the case?
Withdrawal from the ECHR
Of course, it is entirely possible to sign up to the ECHR without being a Member State of the EU: some 19 countries are in this position. But there is no express rule the other way around (see further the analysis in this House of Commons briefing paper). Certainly when the Communities (as they initially were) were initially founded, there was no such expectation. Indeed, France was not a party to the ECHR until the 1970s.
However, the role of human rights in EU law has evolved considerably since then, first of all with the fleshing out of the role of human rights as part of the ‘general principles of EU law’, then with the adoption of the EU’s Charter of Fundamental Rights (binding since 2009) and most recently with the development of plans for the EU itself to become a party to the ECHR. Furthermore, in all the most recent enlargements of the EU, the existing Member States expected the future Member States to sign up not only to the ECHR, but all of its Protocols, and many other human rights treaties besides. The EU is also a strong advocate of human rights treaties worldwide.
The practice relating to new Member States is underpinned by Article 49 TEU, which states that EU membership is open only to States which respect the EU’s ‘values’. Those values are defined in Article 2 TEU as including ‘respect for human rights’, but there is no express mention of ECHR ratification. In light of the recent practice as regards EU accession, there is undoubtedly an established political principle that EU Member States have to be parties to the ECHR when they join the EU. Logically there must be a corollary principle that they remain ECHR parties after they become EU Member States, no matter when they join the EU. But is this a legal rule?
Article 7 TEU provides that Member States can be suspended from EU membership if there is a ‘serious and persistent breach’ of the values set out in Article 2. There is no power for the EU to fully expel a Member State, but perhaps a country whose EU membership was suspended would be (even) more willing to consider the option of unilateral withdrawal from the EU, which is provided for in Article 50 TEU.
Short of the ‘red card’ of suspending EU membership, there is also a possible ‘yellow card’ in Article 7(1) TEU. A Member State can be warned by the EU that there is a ‘clear risk of a serious breach’ of the values set out in Article 2 TEU. Neither the red card nor the yellow card provided for in Article 7 has ever been handed to a Member State, and the general assumption is that they would only be used in extreme situations like a military coup. The ‘red card’ would only be issued if all other Member States voted for this, and it could always be argued that the common law and/or a British Bill of Rights (if there were one, following ECHR withdrawal) would prevent egregious human rights breaches from happening in the UK.
There is no express mention of the ECHR in Articles 2, 7 or 49 TEU. However, there are several express mentions in Article 6 TEU, which sets out the basic framework for internal human rights protection within the EU legal order. First of all, Article 6(3) states that human rights ‘as guaranteed by’ the ECHR are general principles of EU law, although the Court of Justice of the European Union (CJEU) has made clear recently (see the Fransson judgment, for instance), that this does not mean that the ECHR binds the EU as such, at least until the EU actually signs up to that Convention. However, the case law on the general principles frequently refers to the ECHR, and the CJEU has stated for years that it must ‘take account’ of the ECtHR’s judgments in that context.
Secondly, according to Article 6(2), the EU ‘shall’ accede to the ECHR. A draft treaty to that end has been drawn up, and is being reviewed by the CJEU; its judgment is expected later this year. If that ruling is positive, then the treaty would be opened for signature soon thereafter. It will need the unanimous support of all Member States (thus including the UK) to be approved, as well as approval at the national level. It could be argued that Member States are under a legal obligation to approve this accession treaty, in order to facilitate the obligation of the EU to accede to the ECHR. At the very least, it would be awkward if the UK ceased to be a party to the ECHR as a party but had to approve the EU becoming one.
Thirdly, Article 6(1) provides that the EU Charter has the same legal effect as the Treaties. While it is sometimes asserted that the UK has an opt-out from the Charter, due to an ambiguous Protocol on this issue (which also applies to Poland), this is simply not correct. In the NS judgment, the CJEU made clear that the UK was still subject to the Charter in the same way as other Member States. (It is arguably still possible that, due to the Protocol, the UK might not be fully bound by the Charter rules on social rights, but those rights do not generally appear in the ECHR).
The Charter contains many of the same rights as the ECHR, and refers to it several times. In particular, Article 52(3) of the Charter states that the Charter rights which ‘correspond’ to ECHR rights have the ‘same meaning and scope’, and this has been referred to several times by the CJEU. While a House of Commons committee recently suggested that UK legislation should attempt to override the Charter (see my criticism of this bad idea here), the government recently replied that it has a ‘duty to implement all EU law that applies to it’, apparently implicitly ruling out the idea of a change to national law in this respect.
Taken as a whole, it is therefore right to keep in mind – as Joshua Rozenberg has pointed out – that in many respects EU law offers a stronger degree of legal protection for human rights than the ECHR. However, this is only relevant to the extent that the two areas of law cross over, ie a dispute falls within the scope of both EU law (otherwise the Charter doesn’t apply at all) and the rights set out in the ECHR.
So, while there is no formal requirement that a current EU Member State remain a party to the ECHR, and it would not be easy to enforce such a requirement if it existed, there is a very close relationship between the ECHR and EU law. The UK’s attempts to rid itself of the ECHR would be frustrated by the continued partial application of that Convention within the UK, wherever a dispute touched upon both EU law and ECHR rights. This would be exacerbated if the EU signs up to the Convention in the near future, but the EU’s attempts to this end will in turn be frustrated if the UK government or parliament refuses to approve the relevant treaty. Indeed, that treaty is drafted on the assumption that all of the Member States remain ECHR parties alongside the EU itself, and there would be complex questions to answer in the event that any cases arose concerning the UK, the ECHR and EU law once it were in force.
Taking all of these factors together, it is arguable that there is an implicit de jure legal requirement for all EU Member States to be party to the ECHR, otherwise the EU could not carry out its tasks effectively. Possibly the CJEU will clarify this issue in passing, in its upcoming judgment on the EU’s accession treaty to the ECHR. At the very least, there would de facto be enormous complications resulting from this scenario.
Amendment of domestic law
It is much harder to argue that merely reducing the impact of the ECtHR in UK domestic law is incompatible with EU membership. After all, the UK and Ireland did not give domestic legal effect to the ECHR until the last decade or so. (For an interesting discussion of the issues around parliamentary supremacy and human rights protection, see Gavin Phillipson and Mark Elliott).
There will, of course, still be complications if this route is taken. Every time that there is a link between EU law and the ECHR rights in the UK, it would be possible to enforce the ECHR rules by the EU law route, even if the UK parliament had legislated to ignore the ECtHR’s rulings. If the UK parliament then tried to legislate contrary to EU law to avoid this, there would be a direct conflict between the UK’s constitutional foundations and its obligations as a Member State of the EU.
It would of course be legally consistent for the UK to withdraw from both the EU and the ECHR, if that is what is intended. Some (like Eurosceptic MEP Dan Hannan) are open about their intentions in this respect. But there may be some who advocate withdrawing from the ECHR but not the EU as such. Frankly, that position constitutes either a cynical attempt to trigger an EU withdrawal by the back door (a sort of reverse Trojan Horse), or a negligent approach to this issue.
Finally, one view is that the protection of human rights is undesirable, at least for the United Kingdom. For example, this argument is put by Dan Hannan, who asks the question “What have human rights ever done for the UK?” Indeed, he asks that question three times, so he obviously thinks it is a good one. But in fact, it is one of the stupidest questions in human history.
The purpose of human rights protection is clearly not to advance the interests of states, but rather to constrain those states from mistreating individuals. In particular, the ECHR (among many other things) guarantees a fair trial, protects against torture or other inhuman or degrading treatment, prevents arbitrary detention and ensures freedom of speech and privacy. While Hannan suggests that the UK could solve all those problems by itself, the fact is that it didn’t. Every individual who has won a case against the UK in the ECtHR had to try first (under the ECHR’s ‘exhaustion of domestic remedies’ rule) to obtain a remedy in the UK courts, but failed.
And although it is true that the UK (and some other ECHR signatories) does not breach the Convention as often as some other States, its continued participation in the system is valuable not only as regards protection of British citizens and residents, but as a contribution to supporting human rights protection across the rest of Europe, and indeed worldwide. The withdrawal of a large EU Member State from the world’s most sophisticated system for the protection of human rights would be bound to deal a significant blow to that system.
Barnard & Peers: chapter 2, chapter 9